United States v. Cruz, et al

United States Court of Appeals
Fifth Circuit
F I L E D
July 22, 2005
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 03-40886
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
FRANCISCO JAVIER CRUZ,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
______________________________

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ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before SMITH and WIENER,
Circuit Judges.*
PER CURIAM:
This court affirmed Francisco Cruz’s con-
viction and sentence. United States v. Cruz,
388 F.3d 150 (5th Cir. 2004). The Supreme
Court vacated and remanded for further con-
sideration in light of United States v. Booker,
125 S. Ct. 738 (2005). Cruz v. United States,
125 S. Ct. 1969 (2005). We requested and re-
ceived supplemental letter briefs addressing the
impact of Booker.
Cruz was convicted by a jury of importation
and possession with intent to distribute 20 ki-
lograms of cocaine. The jury was instructed
that it must find beyond a reasonable doubt
that “the substance was, in fact, cocaine and
weighed 20 kilograms, more or less, 45
pounds, more or less.” Cruz was sentenced to
210 months’ imprisonment and five years’ su-
pervised release.
Cruz claims there is error under Booker be-
cause he “was sentenced under a Guidelines
range greater than that authorized solely by the
jury’s verdict, based upon a net-drug-weight
finding made by the district court by (Presum-
ably) only a preponderance of the evidence.”
Further, Cruz asserts Booker error “because
Mr. Cruz was sentenced under the assumption
of a mandatory Guidelines system that was
held unconstitutional in Booker.”
Cruz concedes that review is only for plain
error, because he made no objection in the dis-
trict court based on Booker or on Blakely v.
Washington, 542 U.S. 296 (2004), on which
Booker was based. See United States v. Mar-
es, 402 F.3d 511, 520 (5th Cir. 2005), petition
for cert. filed (Mar. 31, 2005) (No. 04-9517).
“An appellate court may not correct an error
the defendant failed to raise in the district
court unless there is ‘(1) error, (2) that is plain,
and (3) that affects substantial rights.’” Id.
(quoting United States v. Cotton, 535 U.S.
625, 631 (2002)).
I.
The government claims there is no Booker
error to satisfy the first prong, because “Cruz’s
guidelines calculation did not include any en-
hancement based on extra-verdict facts.” His
base offense level of 34 was identified because
it is the level for drug offenses involving “at
least 15KG but less than 50KG of Cocaine.”
As the government points out, there was
sufficient evidence from which the jury could
determine, beyond a reasonable doubt, that the
net weight exceeded the 15 kilograms neces-
sary to invoke offense level 34. For example,
one of the agents testified that the cocaine
bricks that were recovered weighed 20.52
kilograms. As we concluded in this appeal, “it
appears quite unlikely that the difference be-
tween the net weight of the cocaine alone, and
the cocaine in its thin packing exceeded the
5.52 kilograms that would be required in order
to make a difference in Cruz’s sentence.”
Cruz, 388 F.3d at 157-58. There is no Booker
error based on any lack of sufficient findings
by a jury beyond a reasonable doubt.
* Judge Pickering was a member of this panel
when the opinion issued on October 7, 2004, but
subsequently retired. Accordingly, this matter is
decided by a quorum. See 28 U.S.C. § 46(d).

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II.
Cruz fares better in the second argument
presented in his supplemental brief, which is
that he was unconstitutionally sentenced under
a guidelines regime that was understood to be
mandatory, in contravention of Booker. We
conclude that he is due a remand.
A.
The government claims that Cruz is barred
from arguing now that sentencing under a
mandatory guideline system is unconstitution-
al. The government cites United States v.
Taylor, 409 F.3d 675, 676 (5th Cir. 2005) (per
curiam), in which we held that, absent extraor-
dinary circumstances, we will not consider
Booker arguments raised for the first time in a
petition for writ of certiorari. Cruz did raise,
in this court, before we issued our opinion,
arguments based on Blakely.
Cruz has sufficiently raised the issue for us
to consider it. In applying Taylor to assertions
of Booker error made for the first time in cer-
tiorari petitions, we generally have applied the
bar where the defendant has failed to raise any
Booker- or Blakely-related issues before filing
his certiorari petition.1 Here, however, Cruz
did raise sentencing issues based on Blakely,
1 E.g., United States v. Ogle, No. 03-60833,
2005 U.S. App. LEXIS 12714, at *2 (5th Cir. June
27, 2005) (per curiam) (stating that Booker issues
were waived “[b]ecause [defendant] did not raise
any Booker-related challenges to his sentence until
his petition for certiorari” and because in his certio-
rari petition he “challenged for the first time the
constitutionality of the Sentencing Guidelines as
applied to him”); United States v. Kennedy, No.
03-11334, 2005 U.S. App. LEXIS 12672, at *5
(5th Cir. June 21, 2005) (per curiam) (unpub-
lished) (declining to consider Booker issues be-
cause defendant “raised alleged Booker error for
the first time in his petition for writ of certiorari”);
(continued...)
1(...continued)
United States v. Higginbotham, No. 04-50018,
2005 U.S. App. LEXIS 11788, at *2-*3 (5th Cir.
June 20, 2005) (per curiam) (unpublished) (refus-
ing to consider Booker issues because defendant
“raised no sentencing issues in his [initial] appeal
to this court” and raised in his certiorari petition,
“for the first time in any forum, Booker-related
sentencing issues”); United States v. Madrazo-
Constante, No. 04-40374, 2005 U.S. App. LEXIS
11862, at *2 (5th Cir. June 20, 2005) (per curiam)
(unpublished) (declining to consider Booker ques-
tion because defendant “challenged the constitu-
tionality of the Sentencing Guidelines as applied to
him for the first time in his petition for writ of
certiorari”); United States v. Elizarraraz, No. 03-
40728, 2005 U.S. App. LEXIS 11712, at *2 (5th
Cir. June 17, 2005) (per curiam) (unpublished)
(refusing to consider Booker issues where defen-
dant “challenged the constitutionality of the Sen-
tencing Guidelines as applied to him for the first
time in his petition for a writ of certiorari”); United
States v. Marquez-Gomez, No. 04-50154, 2005
U.S. App. LEXIS 11733, at *3 (5th Cir. June 17,
2005) (per curiam) (unpublished) (declining to
consider Booker issues because defendant “did not
raise any Booker-related challenges to his sentence
until his petition for certiorari”); United States v.
Santillana, No. 03-40975, 2005 U.S. App. LEXIS
11329, at *2 (5th Cir. June 15, 2005) (per curiam)
(unpublished) (refusing to address Booker issues
because “[f]or the first time in his petition for writ
of certiorari, [defendant] challenged the constitu-
tionality of is sentence based on the then-recent
holding in Blakely”); United States v. Rubio, No.
03-40837, 2005 U.S. App. LEXIS 11167, at *2-*3
(5th Cir. June 13, 2005) (per curiam) (unpub-
lished) (same); United States v. Gutierrez, No. 03-
41458, 2005 U.S. App. LEXIS 10518, at *3 (5th
Cir. June 7, 2005) (per curiam) (unpublished)
(stating that we “will not review” claim “[b]ecause
[defendant] did not raise any Booker-related chal-
lenges to his sentence until his petition for certio-
rari”).

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so we will consider all his assertions of Blake-
ly and Booker error now on remand.
B.
“Technically, this is a “Fanfan error, not a
Booker error.” United States v. Martinez-Lu-
go, No. 04-40478, 411 F.3d 597, ___, 2005
U.S. App. LEXIS 10432, at *5 (5th Cir. June
7, 2005) (per curiam) (referring to Ducan Fan-
fan, the second defendant in the consolidated
opinion in Booker). See United States v. Ville-
gas, 404 F.3d 355, 364 (5th Cir. 2005) (per
curiam) (discussing the difference between
Booker and Fanfan error).
The third prong of the plain-error test re-
quires, under Mares, that “the defendant rather
than the government bears the burden of per-
suasion with respect to prejudice.” Mares,
402 F.3d at 521 (citing United States v.
Olano, 507 U.S. 725, 734 (1993)). To show
that his substantial rights are affected, Cruz
would have to “point[] to . . . evidence in the
record suggesting that the district court would
have imposed a lesser sentence under an advis-
ory guidelines system.” Taylor, 409 F.3d at
677 (citations omitted). In other words, “the
pertinent question is whether [the defendant]
demonstrat ed that the sentencing
judgeSSsentencing under an advisory scheme
rather than a mandatory oneSSwould have
reached a significantly different result.” Mar-
es, 402 F.3d at 521. To meet this standard,
the proponent of the error must demonstrate a
probability “sufficient to undermine confidence
in the outcome.” United States v. Dominguez
Benitez, 542 U.S. 74, __, 124 S. Ct. 2333,
2340 (2004).
Cruz has satisfied that standard. He made
a motion for downward departure, to which
the court responded, “To depart I would have
to deviate from the impositions . . . of the
Sentencing Guideline criminal history range.”
After Cruz’s allocution, the court stated the
following: “You finally made it to the big
court. And the big court is governed by the
Sentencing Guidelines. Nobody in this room
can do anything for you.” The court then im-
posed the minimum sentence under the appli-
cable guideline range.
This is similar to the situation we treated in
United States v. Monreal-Monreal, No. 04-
40547, 2005 U.S. App. LEXIS 11496 (5th
Cir. June 16, 2005) (per curiam) (unpub-
lished). There, as here, the court sentenced
the defendant at the low end of the applicable
range and stated that it had no latitude to
reduce the sentence further. We held that
“[b]ecause [defendant] can point to a state-
ment from the district court demonstrating a
likelihood that he would have received a lesser
sentence under an advisory application of the
sentencing guidelines, he has shown that the
error affected his substantial rights and has met
the third prong of the plain error test.” Id. at
*4-*5 (citing United States v. Pennell, 409
F.3d 240, 245-46 (5th Cir. 2005)). “Because
[defendant] has shown the likelihood that the
error in this case increased his sentence, he has
shown that the error seriously affects the
fairness, integrity, or public reputation of
judicial proceedings.” Id. at *5 (citing Pen-
nell, 409 F.3d at 246).
Accordingly, the judgment of sentence is
VACATED and REMANDED for resentenc-
ing. The judgment of conviction is
AFFIRMED for the reasons expressed in our
initial opinion.2
2 We need not consider Cruz’s remaining ar-
guments, which are (1) that due process forbids the
retroactive application of Booker’s remedial hold-
ing to him, see United States v. Scroggins, No. 03-
30481, 411 F.3d 572, ___, 2005 U.S. LEXIS
(continued...)

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2(...continued)
10377, at *9-*11 (5th Cir. June 6, 2005); and (2)
that Booker error is structural or presumed prejudi-
cial, see Martinez-Lugo, 411 F.3d at ___, 2005
U.S. App. LEXIS 10432, at *7-*8; United States
v. Malveaux, 411 F.3d 558, ___ n.9, 2005 U.S.
App. LEXIS 5960, at *4 n.9 (5th Cir. Apr. 11,
2005). He recognizes, in any event, that these
issues are foreclosed by the cases cited, and he
raises them only to preserve them for possible
further review.

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